Neil Spurrier v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Mr Justice Holgate |
| Judgment Date | 05 February 2019 |
| Neutral Citation | [2019] EWHC 528 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3089/2018 CO/3149/2018 CO/3071/2018 CO/3147/2018 |
| Date | 05 February 2019 |
[2019] EWHC 528 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
DIVISIONAL COURT
Royal Courts of Justice
Lord Justice Hickinbottom
and
Mr Justice Holgate
CO/3089/2018
CO/2760/2018
CO/3149/2018
CO/3071/2018
CO/3147/2018
The Queen on the Application of
and
APPEARANCES
Mr T Crossland (Director, Plan B Earth) appeared in person on behalf of the Claimant Plan B Earth.
Mr D Wolfe QC (instructed by Leigh Day) appeared on behalf of the Claimant Friends of the Earth.
Miss S Ring — Solicitor Advocate — (instructed by Harrison Grant) appeared on behalf of the claimants London Borough of Hillingdon and other boroughs.
THE DEFENDANT did not attend and was not represented.
Introduction
The Claimants seek to challenge the Airports National Policy Statement: New Runway Capacity and Infrastructure at Airports in the South East of England, which the Defendant Secretary of State designated as a National Policy Statement under section 5 of the Planning Act 2008 on 26 June 2018. They do so in five linked claims for judicial review which are due to be heard on a rolled-up basis by this constitution of the court in March 2019.
The claims give rise to several issues of considerable public interest and importance, including the legal compatibility of the UK Government's aviation strategy with its obligation to implement the Paris Agreement on Climate Change. That issue lies at the heart of the claims brought by Plan B Earth and Friends of the Earth Limited.
There is before the Court an application by those two Claimants that the March hearing be live-streamed on the internet. Those Claimants are represented by Tim Crosland and David Wolfe QC respectively. A number of the other Claimants have expressed support for the application. Susan Ring appears on behalf of the London Borough of Hillingdon and other local authority Claimants in support of it. The Secretary of State has indicated he is neutral on the issue. No party opposes it.
Mr Crosland, who has led on the issue, submits that the factors in favour of live-streaming the hearing are overwhelming. There is, he submits, a growing recognition that judicial proceedings of a public nature should be made available by live-streaming. It is an important element of the principle of access to justice. These proceedings concern matters which are of particular public interest and, Mr Crosland submits, are matters in respect of which public engagement should be facilitated if not positively encouraged. Many people who have an interest in the issues raised will be unable to attend the hearing because of the costs and difficulties in travelling to London. Some, including wheelchair users, may have difficulties of access to the courts in this building. In any event, Mr Crosland submits that there are likely to be more people wishing to attend the proceedings than a court – or even two courts – could accommodate. This court – Court 76 – is the largest court in the Royal Courts of Justice, and it was full for the October 2018 hearing for directions. There are therefore several positive reasons for an order allowing live-streaming whilst, he submits, there is no downside: for example, the case does not raise issues of individual privacy which might argue against such an order. Live-streaming facilities are available in several of the courts, as they are in regular use in the Court of Appeal. The cost of providing the facility is not an issue, especially when balanced against the public interest in allowing live-streaming.
If the court had a discretion to allow the broadcasting of its proceedings in the form of live-streaming, I see the very considerable force in these submissions on the merits of the application.
However, Parliament has imposed restrictions on the publication of court proceedings. Insofar as such restrictions are made by Parliament, they constrain the inherent jurisdiction of the High Court to regulate its own procedure.
Section 41 of the Criminal Justice Act 1925, as amended by section 47 of the Constitutional Reform Act 2005 (which excluded the Supreme Court from the restrictions) and section 32(7) of the Crime and Courts Act 2013, under the heading “Prohibition on taking photographs, &c., in court”, provides as follows:
“(1) No person shall—
(a) take or attempt to take in any court any photograph, or with a view to publication make or attempt to make in any court any portrait or sketch, of any person, being a judge of the court or a juror or a witness in or a party to any proceedings before the court, whether civil or criminal; or
(b) publish any photograph, portrait or sketch taken or made in contravention of the foregoing provisions of this section or any reproduction thereof;
and if any person acts in contravention of this section be shall, on summary conviction, be liable in respect of each offence to a fine….
(1A) See section 32 of the Crime and Courts Act 2013 for power to provide for exceptions.
(2) For the purposes of this section—
(a) the expression “court” means any court of justice (including the court of a coroner), apart from the Supreme Court;
(b) ….
(c) a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court-room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court-room or any such building or precincts as aforesaid.”
For these purposes, “photograph” includes moving film ( R v Loveridge, Lee and Loveridge [2001] EWCA Crim 973; [2001] 2 Cr App R 29).
Thus, section 41 prohibits not only the taking or making of a photograph or moving film of court proceedings but also the publication of such material. The prohibition is absolute, in the sense that the court has no power to override it by granting permission for recording or publication of images. Parliament has made no provision for such authorisation which, absent statutory intervention, would fall within the inherent powers of the High Court to govern its own procedure.
Section 9 of the Contempt of Court Act 1981 deals with sound recording and publication:
“(1) Subject to subsection (4) below, it is a contempt of court—
(a) to use in court, or bring into court for use, any tape recorder or other instrument for recording sound, except with the leave of the court;
(b) to publish a recording of legal proceedings made by means of any such instrument, or any recording derived directly or indirectly from it, by playing it in the hearing of the public or any section of the public, or to dispose of it or any recording so derived, with a view to such publication.
….
….
(1A) In the case of a recording of Supreme Court proceedings, subsection (1)(b) does not apply to its publication or disposal with the leave of the Court.
(2) Leave under paragraph (a) of subsection (1), or under subsection (1A), may be granted or refused at the discretion of the court, and if granted—
(a) may, in the case of leave under subsection (1)(a), be granted subject to such conditions as the court thinks proper with respect to the use of any recording made pursuant to the leave; and
(b) may, in the case of leave under subsection (1A), be granted subject to such conditions as the Supreme Court thinks proper with respect to publication or disposal of any recording to which the leave relates; and where leave has been granted the court may at the like discretion withdraw or amend it either generally or in relation to any particular part of the proceedings.
….
(4) This section does not apply to the making or use of sound recordings for purposes of official transcripts of proceedings.
(5) See section 32 of the Crime and Courts Act 2013 for power to provide for further exceptions.”
Therefore, the court is given power to authorise the recording of sound in court – but not for its publication, which Parliament strictly forbids. Mr Crosland's submission that section 9(2) properly construed enables a court to impose conditions on the use of tape recording in court to the extend to its publication inevitably fails because it is in direct conflict with section 9(1)(b).
Exceptions to these provisions have been provided by statute. Section 47 of the Constitutional Reform Act 2005 amended section 41 of the 1925 Act and section 29 of the 1981 Act to exclude the Supreme Court from the relevant provisions. Consequently, the Supreme Court may authorise the recording and publication and broadcast of its proceedings; and, in practice, it regularly authorises the live-streaming of its proceedings.
Furthermore, the two statutes each expressly refer to exceptions provided for by...
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